Bradford v. Kupper Associates
Decision Date | 10 August 1995 |
Citation | 662 A.2d 1004,283 N.J.Super. 556 |
Parties | Frances A. BRADFORD, Executrix of the Estate of Milton E. Bradford, Deceased, Plaintiff, v. KUPPER ASSOCIATES, Borough of Tuckerton, Borough of Tuckerton Municipal Utilities Authority, Ocean County Utilities Authority and John Does 1-13 (fictitious names of individuals more fully described herein), Defendants, and KUPPER ASSOCIATES, Third-Party Plaintiff-Appellant, v. AGATE CONSTRUCTION COMPANY, Third-Party Defendant-Respondent. John E. WARE, Plaintiff, v. AGATE CONSTRUCTION COMPANY, Borough of Tuckerton, Borough of Tuckerton Utilities Authority, County of Ocean, County of Ocean Utilities Authority, State of New Jersey, Kupper Associates, John Doe, Richard Doe, jointly, severally and/or in the alternative, Defendants (Three Cases). Frances A. BRADFORD, Executrix of the Estate of Milton E. Bradford, Deceased, Plaintiff-Appellant-Cross-Respondent, v. KUPPER ASSOCIATES, Defendant-Respondent-Cross-Appellant, and Borough of Tuckerton, Ocean County Utilities Authority and John Does 1-13 (fictitious names of individuals more fully described herein), Defendants, and Borough of Tuckerton Municipal Utilities Authority, Defendant-Respondent, and KUPPER ASSOCIATES, Third-Party Plaintiff-Respondent, v. AGATE CONSTRUCTION COMPANY, Third-Party Defendant-Respondent. Frances A. BRADFORD, Executrix of the Estate of Milton E. Bradford, Deceased, Plaintiff, v. KUPPER ASSOCIATES, Borough of Tuckerton, Borough of Tuckerton Municipal Utilities Authority, Ocean County Utilities Authority and John Does 1-13 (fictitious names of individuals more fully described herein), Defendants, and KUPPER ASSOCIATES, Third-Party Plaintiff, v. AGATE CONSTRUCTION COMPANY, Third-Party Defendant. John E. WARE, Plaintiff-Appellant, v. AGATE CONSTRUCTION COMPANY, Borough of Tuckerton Utilities Authority, and Kupper Associates, Defendants-Respondents, and Borough of Tuckerton, County of Ocean, County of Ocean Utilities Authority, State of New Jersey, John Doe, Richard Doe, jointly, severally and/or in the alter |
Court | New Jersey Superior Court — Appellate Division |
Dennis P. Blake, for appellant/cross-respondent Frances A. Bradford (Brown & Connery, attorneys; Mr. Blake, on the brief).
Daniel McCormack, for appellant John E. Ware (Mr. McCormack, on the brief).
Thomas D. Monte, Jr. and Frank E. Borowsky, Jr., for appellant/respondent/cross-appellant Kupper Associates (Monte & Marriott, attorneys; Mr. Monte, of counsel; Mr. Borowsky, on the brief).
Thomas M. Masick, for appellant/respondent Tuckerton Municipal Utilities Authority (Parker, McCay & Criscuolo, attorneys; Stacy L. Moore, Jr., of counsel; Mary Ann C. O'Brien, on the brief).
Lars S. Hyberg, for respondent Agate Construction Company, Inc. (McAllister, Westmoreland, Vesper & Schwartz, attorneys; Mr. Hyberg, on the brief).
Before Judges MICHELS, STERN and KEEFE.
The opinion of the court was delivered by
STERN, J.A.D.
Plaintiffs appeal from a judgment of no cause following a jury verdict and a denial of their post-verdict motions for judgment N.O.V. and new trial. 1
Milton E. Bradford and John E. Ware were employees of Agate Construction Company ("Agate"), which contracted with the Tuckerton Borough Municipal Utilities Authority ("TMUA") to replace and rehabilitate its sewer lines. Kupper Associates ("Kupper") was TMUA's engineer for the project.
It was undisputed that TMUA and Kupper knew of the presence of a poisonous gas, hydrogen sulfide, in the sewer system, but failed to disclose that fact to Agate. Under the contract and applicable regulations, Agate was responsible for the safety at the site and for having appropriate safety equipment for use by its employees. During the construction, however, Bradford was killed and Ware was seriously injured when they inhaled the gas during the course of their employment. Bradford's executrix and Ware filed separate complaints against Kupper and TMUA. Agate was made a third-party defendant in light of its contractual indemnification. 2
Plaintiffs asserted that Kupper and TMUA breached their duty to warn Agate of the existence of the poisonous gas. The jury found that Kupper had negligently breached its duty to warn, but that its negligence was not a proximate cause of plaintiffs' injuries. The jury also found that TMUA was not liable either because it did not breach a duty which was owed to plaintiffs or because of the absence of proximate cause, or both.
On their appeals, both plaintiffs challenge the trial judge's jury charge regarding proximate cause. They also seek a reversal because the judge failed to charge on the nondelegability of a landowner's duty to warn and on adverse inferences to be drawn from defendants' failure to produce certain witnesses at trial. In its cross-appeal, Kupper argues that its motion for summary judgment should have been granted. We consolidate the separate appeals for purposes of this opinion.
We find no basis to reverse the judgment against plaintiffs and no need for a discussion of some of plaintiffs' contentions. See R. 2:11-3(e)(1)(B), (C), (E).
Kupper and TMUA also appeal the judge's pre-trial determination that Agate was not required, under the construction contract, to indemnify them for expenses flowing from any negligent acts or omissions. Based on the jury's verdict and our affirmance thereof, the issue now has relevance only with respect to the legal fees of Kupper and TMUA. In that respect, we reverse the determination as to indemnification, and remand for further proceedings on that subject alone.
In 1986, TMUA decided to replace and rehabilitate portions of its sewer lines. The project was "primarily financed" by the Farmers Home Administration ("FmHA"), a federal agency within the Department of Agriculture. The FmHA required that its standard contract forms be used with respect to the projects they financed.
On March 6, 1986, TMUA and Kupper executed a FmHA contract whereby Kupper agreed to provide engineering services for the project. Kupper agreed to "conduct preliminary investigations," issue a preliminary engineering report and provide "construction drawings, specifications and contract documents" in connection with the project. The contract required Kupper to "provide general engineering review of the work of the contractors as construction progresses to ascertain that the contractor is conforming with the design concept."
Kupper was to "interpret the intent of the drawings and specifications to protect the OWNER against defects and deficiencies in construction on the part of the contractors," but, as the contract further provided, "[t]he ENGINEER will not ... guarantee the performance by any contractor." Kupper was also, among other obligations, to provide "resident construction inspection." However, the contract also provided that the engineer's responsibilities:
shall not relieve the contractor of [the] contractor's obligation to perform the work in conformity with the drawings and specifications and in a workmanlike manner; shall not make the ENGINEER an insurer of the contractor's performance; and shall not impose upon the ENGINEER any obligation to see that the work is performed in a safe manner.
The contract was approved by the FmHA.
On September 16, 1986, the Ocean County Utilities Authority ("OCUA") wrote to Kupper indicating that OCUA had endorsed the proposed replacement and rehabilitation work because:
the wastewater being discharged into our system from Tuckerton contains hydrogen sulfide in excess of that permitted by our Sewer Use Rules and Regulations. This gas not only has a detrimental affect on this Authority's sewer lines since it is converted to sulfuric acid in the system by bacteria, but also presents a potential health hazard to our employees when they enter our system for inspection and maintenance purposes.
James Parr was Kupper's "project engineer." Parr's pre-construction examination of the Tuckerton sewers revealed that they "were in a state of disrepair" with broken pipes and other "flow" problems. He was shown "massive corrosion" which he was told resulted from the hydrogen sulfide gas. That gas could also be smelled on the streets.
On August 12, 1987, Parr wrote to TMUA and indicated that "pile support systems" were necessary improvements which "could result in further hydrogen sulfide generation." On September 11, 1987, in a letter to the New Jersey Department of Environmental Protection and Energy ("DEPE"), Parr noted, among other things, that "hydrogen sulfide generation is a problem."
It is clear that Kupper, as project engineer, was on notice of the hazardous condition caused by the hydrogen sulfide gas before the construction contract was executed.
Agate was the successful bidder for the construction contract. In March 1988, a construction contract was executed. Section 11 of the FmHA "general conditions" described Agate's responsibilities regarding the safety of work, property, and persons:
11.1 The CONTRACTOR will be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the WORK. The CONTRACTOR will take all necessary precautions for the safety of, will provide the necessary precautions for the safety of, and will provide the necessary protection to prevent damage, injury or loss to all employees on the WORK and other persons who may be affected thereby, all the WORK and all materials or equipment to be incorporated therein,...
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